Thursday, March 18, 2010

More on cultural referencing

Following up on a previous post ("Pirates!"), where Patricia posted a comment on "remix culture," I wanted to present a range of "borrowings" that I think reflect the problem we have with an "all borrowing is plagiarism" approach to copyright.

If you follow the link above, you can hear the "Kookaburra" reference in Men at Work's song, "Down Under." This reference is similar to an incident that is supposed to have occurred around Brahms's Fourth Symphony, where someone pointed out that a certain phrase resembled a similar phrase in Beethoven's Ninth Symphony. Brahms replied, "Any fool knows that." The listener was supposed to spot the borrowing. Brahms wasn't using the phrase just because it would sound good, but he wanted to make his own listeners think of Beethoven at that point. Plagiarism is nothing new, but neither is respectful cultural cross-referencing.

Here is a similar borrowing, which I immediately thought of regarding the Men at Work affair, by Ben Folds. At the end of his song "Philosophy," he makes first a vague, then an explicit, reference to George Gershwin's "Rhapsody in Blue"* (starting about 3:55):

Here's an even more interesting performance, where he mixes "Rhapsody" with "Misirlou": (go to 3:40)

Any fool would catch that reference, and only a fool would deny Folds's creativity or claim his song was primarily plagiarized. Because, despite the borrowing, Ben Folds is no Shepard Fairey, who simply copies other people's work and hopes they won't notice:

There's a world of difference between the two: any fool can tell which one is creative and which one is not. But now for a slightly harder case: what do you make of a mashup like DJ Earworm's "Blame it on the Pop," which is "composed" entirely of snippets from other artists' music, but is remarkably original nonetheless:

See here for a color-coded reference to the borrowed music. I think I would defend DJ Earworm's use here on the grounds that it is a profoundly transformative work, which is a valid legal defense against claims of copyright infringement. And, unlike Fairey, the appreciation of this work is enhanced by understanding the source material. I certainly want our IP laws to preserve room for this much creativity.

* which I believe is still under copyright


James Hanley said...

It's an odd debate that's going on. On the one hand, you have a group of people who are arguing that you can't have property in an idea, so that the idea of intellectual property is completely unjustifiable. On the other hand you have the legal system that seems to be going so far towards an "all borrowing is theft" standard that soon it will be illegal to use middle C in a song because someone else has already used it.

And then you have the non-theorists--the artists who are just doing mashups as they always have. I'm inexorably reminded of the end of Candide: "Let us work without theorizing; 'tis the only to make life endurable."

Scott Hanley said...

Ho ho ho, and how soon are you going to take that no-theory approach to property and liberty? ;-)

It's funny you mention Middle C, because I almost threw in a reference to the effect that nowadays someone would try to copyright or patent the major and minor scales and lay claim to every tune anyone tried to write using them. While I don't pay much attention to technology patents, I think some claims are about that broad.

In copyright law, there's a tradition that you can't copyright an idea itself, only the form in which you express it. Disney can't copyright the notion of a talking mouse, but they can copyright the recognizable image of a mouse named Mickey.

It does open the door to some blatant ripoffs, as in Matthews v. Freedman, where someone created a t-shirt design clearly derivative of another, but changed the details just enough to avoid a finding of infringement. The court ruled that "An alleged infringing work taken as a whole may seem 'substantially similar' to the copyrighted work taken as whole, but the impression of similarity may rest heavily upon similarities in the two works as to elements that are not copyrightable -- because those elements are the underlying ideas, or expressions that are not original with the plaintiff, or for some like reason." If the 'elements' can't be copyrighted, neither can the overall impression of the work.

One problem is that I, and probably many others, want to protect what is clearly creative without necessarily opening up the door to what is clearly unoriginal. But that's such a subjective concept that I don't blame courts for avoiding the responsibility to define "creativity." Although come to think of it, we have that definition of "obscenity" we could - ahem - borrow ....